IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim for benefits by ALAN JENNINGS
- and -
IN THE MATTER of an appeal to an Umpire by the claimant from a decision of the Board of Referees given at Sudbury, Ontario on April 19, 1999
THE HONOURABLE R.E. SALHANY, Q.C., UMPIRE
This appeal was heard at Sudbury, Ontario on Tuesday, September 28, 1999.
At issue on this appeal is whether the Board of Referees erred in holding that a grievance settlement package received by the appellant from his employer constituted earnings within the meaning of the Act and subject to allocation against and deduction from earnings pursuant to sections 35(2) and 36(9) and (10) of the Regulations.
The facts are straightforward. The appellant was employed as an engineer by the Ontario Ministry of Labour until December 13, 1996. At that time he was paid $33, 118.28 severance pay and $7, 137.33 vacation pay. In June 1998, as a result of a grievance settlement, the appellant was also paid an additional $84, 640.00 as well as $3, 244.24 by way of separation allowance. The appellant's normal weekly earnings were $1, 614.49. The Commission took the position that all of the payments constituted earnings and allocated the monies received against the benefits which he started receiving resulting in an overpayment of $18, 585.00.
A majority of the members of the Board of Referees agreed with the Commission and dismissed the appeal. A dissenting member concluded that the grievance settlement reached in June, 1998, a year and a half after termination of employment, did not Constitute earnings or severance pay. That member found that the grievance settlement amounted to a purchase by the Ministry of the appellants "rights to extricate themselves from a legal situation which they did not wish to pursue."
I have difficulty understanding what the dissenting member meant by this phrase. Settlement of a legal action is a common practice carried on by all level of courts and administrative tribunals. What is in issue is not whether it was a purchase of the appellant's rights but the nature of those rights. What must be decided is whether the appellant's claim against the employer was one for earnings or for some other damages incurred.
On this appeal, the appellant argued that the grievance settlement was in connection with a claim of discrimination and bias against engineers employed by the Ministry of Labour. However, the memorandum of Agreement signed by the Ministry and the appellant bringing the grievance to an end says nothing about the nature of the grievance. Moreover, paragraph 2 of the Memorandum provides that the terms and conditions of the agreement shall remain confidential between the parties and shall not be disclosed, except as required by law or by PEGO for internal purposes.
The authorities binding on this court are clear that the appellant has the onus of establishing that monies received from an employer were received for something other than loss of income: Attorney General of Canada v. Walford A-263-78. In the absence of such proof, the Umpire is not entitled to speculate as to the purpose of the payment. Unfortunately, the appellant is precluded by the nature of the agreement which he signed with his employer to reveal the terms and conditions of settlement. I am unable to conclude that, on the basis of evidence which was before the Board of Referees, the majority erred in reaching the decision which they did.
Accordingly, the appeal must be dismissed
R.E. Salhany
Umpire
Dated at Sudbury, Ontario this 28th day of September, 1999.
2011-01-10